APPELLATE COURT OPINIONS

In this divorce case, Husband and Wife filed cross-appeals seeking review of the trial court’s: (1) division of marital property; (2) award of alimony in futuro to Wife; and (3) award of alimony in solido to Wife. Husband raises additional issues concerning the trial court’s reliance on testimony from Wife’s medical expert and the trial court’s refusal to apply the missing witness rule. Discerning no error, we affirm and remand.

Henry Lee Jones, Petitioner, filed a pro se petition for post-conviction relief with the assistance of the Office of the Post-Conviction Defender (“OPCD”). The post-conviction court determined that the petition stated a colorable claim and appointed the OPCD to represent Petitioner. Shortly thereafter, the effects of COVID-19 began to impact and impede the day-to-day operations of parts of the Tennessee court system. The OPCD, citing the voluminous record and inability to fully investigate potential claims because of the impact of COVID-19, sought several extensions of time in which to file an amended petition. Seven months after the OPCD was appointed to represent Petitioner, the post-conviction court removed the OPCD from representation and appointed private counsel to represent Petitioner without notice or a hearing. The OPCD sought an extraordinary appeal to this Court pursuant to Rule 10 of the Rules of Appellate Procedure. This Court granted the application and directed the parties to address the following issues: (1) “whether the post-conviction court abused its discretion in removing the [OPCD] as counsel of record;” and (2) “whether the [OPCD] has the authority to act as counsel of record for [Petitioner] in this Court.” After review, we determine that the OPCD had the authority to appeal the removal and that the post-conviction court improperly removed the OPCD from the case. As a result, we reverse the judgment of the post-conviction court and remand the case for further proceedings consistent with this opinion.

A juvenile was adjudicated delinquent in juvenile court, as well as circuit court on de novo appeal, for rape of a child and incest. On appeal to this Court, the juvenile argues that the evidence was insufficient to prove that he committed those offenses. We affirm.

A seller entered into an agreement to sell its meal preparation business and assets to a purchaser who was also in the meal preparation business.  When the seller failed to perform certain of its obligations under the agreement, the purchaser ceased performing its contractual obligations.  The seller filed a breach of contract claim against the purchaser, and the purchaser moved for summary judgment based on the seller committing the first material breach.  The trial court granted summary judgment to the purchaser, and the seller appealed.  We affirm as modified and remand for a determination of the purchaser’s reasonable attorney fees incurred on appeal.

Defendant, Robert M. Atwell, Jr., was convicted by a jury of one count of violating the sex offender registry. The trial court imposed a sentence of one year, with ninety days incarceration, and the remainder to be served on probation. On appeal, Defendant argues that: the trial court erred by admitting specific evidence of his prior sexual offenses after he offered to stipulate his status as a sex offender; his conviction for violation of the sex offender registry violates the Ex Post Facto Clause of both the United States and Tennessee Constitutions; there was a fatal variance between the indictment and the proof presented at trial; and there was cumulative error. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

The Petitioner, Nathan Scarborough, pleaded guilty to aggravated child abuse of a child eight years of age or less and second degree murder, and he received an effective thirty-three-year sentence. The Petitioner filed a petition for post-conviction relief, contending that he received ineffective assistance of counsel and that he did not plead guilty knowingly and voluntarily. Following a hearing, the post-conviction court denied the petition, and the Petitioner appeals. After review, we affirm the judgment of the post-conviction court.

This appeal arises from a petition for divorce filed in the Chancery Court for Rutherford County (the “trial court”). Noblelynn Shelby Norris (“Wife”) was granted a divorce from Terry Jamar Norris (“Husband”) after a hearing held on September 30, 2019. The trial court named Wife primary residential parent of the parties’ minor son, set child support, and awarded Wife her attorney’s fees. Because the trial court has never awarded Wife a specific amount of attorney’s fees, however, the order appealed from is nonfinal and must be dismissed.

The Petitioner, DeMarco Waters, appeals the denial of post-conviction relief with respect to his convictions for one count of first degree premeditated murder, three counts of attempted first degree murder, one count of attempted second degree murder, and four counts of employing a firearm during the commission of a dangerous felony, for which he received an effective sentence of life imprisonment plus seventy-seven years. On appeal, the Petitioner maintains that he received ineffective assistance of counsel at trial. We affirm the judgment of the post-conviction court.

A minority shareholder in a close corporation brought a shareholder oppression claim.  The trial court heard the claim in two phases.  After the first phase, the trial court found that there was shareholder oppression by the majority shareholder and determined that redemption of the minority shareholder’s shares was the appropriate remedy.  After the second, the court found the fair value of the minority shareholder’s shares.  The court later awarded attorney’s fees to the minority shareholder, but it failed to award fees associated with the second phase of trial.  The court also denied the minority shareholder’s request for prejudgment interest and dismissed an unjust enrichment claim.  On appeal, the minority shareholder takes issue with the court’s fair-value determination.  He also claims that he was entitled to prejudgment interest, as well as attorney’s fees for both phases of trial.  And he argues that the court erred in dismissing his unjust enrichment claim.  We affirm.  

The Petitioner, Seddrick Curry, pleaded guilty to two counts of aggravated burglary, one count of theft of property valued at $10,000 or more but less than $60,000, and one count of theft of property valued at $1,000 or more but less than $10,000, and he was sentenced to an effective thirty-year period of incarceration. The Petitioner filed a motion to withdraw his guilty pleas, claiming that his pleas were not knowingly and voluntarily entered due, in part, to the ineffective assistance of counsel. The trial court denied the Petitioner’s motion, and the trial court’s decision was affirmed on appeal. The Petitioner then petitioned for post-conviction relief on the basis that he received ineffective assistance of counsel. The post-conviction court denied his petition, and the Petitioner appeals. After review, we conclude that the issue presented on appeal has been previously determined, and we affirm the denial of post-conviction relief.

A decedent bequeathed his ownership interest in a corporation to his sister.  During the decedent’s lifetime, the corporate assets were sold, and the corporation terminated.  The decedent’s widow petitioned the probate court to construe the will.  Among other things, she argued that the decedent’s gift to his sister had been adeemed by extinction.  The probate court granted the widow summary judgment on this issue.  Based on the undisputed facts, we conclude that the gift was adeemed by extinction.  So we affirm.  

This appeal involves an arbitration agreement executed in connection with a patient’s admission to a nursing home. The arbitration agreement was executed by the patient’s brother, who had been designated as the patient’s attorney-in-fact for health care pursuant to a durable power of attorney for health care executed by the patient several years earlier. When the patient’s brother filed this wrongful death suit in circuit court, the nursing home defendants filed a motion to compel arbitration. The patient’s brother then asserted that he did not have authority to bind the patient to the arbitration agreement because the patient had been mentally incompetent when he executed the durable power of attorney for health care years earlier. The defendants argued that the trial court was not permitted to “look beyond” the durable power of attorney for health care to determine the competency of the patient at the time of its execution. The trial court ruled that it would “look beyond” the power of attorney for health care in order to consider the patient’s competency and allowed the parties to engage in discovery related to the issue of incompetence. Discovery ensued, and the parties submitted additional evidence regarding the patient’s competency. The trial court then found by clear and convincing evidence that the patient was incompetent at the time the durable power of attorney for health care was executed. As a result, the trial court concluded that the patient’s brother lacked authority to sign the arbitration agreement as attorney-in-fact for health care. The trial court denied the motion to compel arbitration, and the defendants appealed. Pursuant to the Tennessee Supreme Court’s decision in Owens v. National Health Corp., 263 S.W.3d 876 (Tenn. 2007), we hold that the trial court erred in looking beyond the durable power of attorney for health care to examine the patient’s competency at the time it was executed. We reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Defendant, Randal Ledon Tate, was convicted by a jury of possession with intent to sell less than fifteen grams of heroin within 1,000 feet of a school (count 1), possession with intent to deliver less than fifteen grams of heroin within 1,000 feet of a school (count 2), simple possession of Alprazolam (“Xanax”) (count 3), possession with intent to deliver Xanax within 1000 feet of a school (count 4), driving without a license (count 5), criminal impersonation (count 6), violation of the financial responsibility law (count 7), violation of the registration law (count 8), and driving a motor vehicle without operational taillights. (count 9). The trial court merged count 2 into count 1 and count 3 into count 4 and imposed an effective fifteen-year sentence as a Range I offender to be served in confinement. On appeal, Defendant argues: that the evidence was insufficient to support his convictions for possession of Xanax and heroin with intent to sell or deliver; that the trial court erred by admitting text messages about prior drugs sales; and that the trial court erred by denying his motion to dismiss based on an alleged Ferguson violation. After hearing oral arguments, and following a review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

The defendant, Earlie M. Jones, pled guilty to burglary, shoplifting, subsequent offense driving on a revoked license, and evading arrest, resolving the charges against him in five separate indictments.  As a result of his plea, he was sentenced to an effective term of four years’ incarceration.  On appeal, the defendant argues the trial court erred in denying his oral motion to withdraw his guilty pleas prior to imposition of the sentence.  After review, we affirm the judgment of the trial court but remand the case for entry of corrected judgments in Count 1 of case number 28153 and Count 2 of case number 28152.

John W. McClarty, J., dissenting.

The majority affirms the trial court’s judgment that the defendant, Abdiqani Gelle (“Defendant”), violated a reckless driving city ordinance, Metropolitan Code of Law §12.68.180, by driving 65 miles per hour in a 45-mile-per-hour zone.  The trial court determined that Defendant had failed to rebut the presumption created by the ordinance that he demonstrated “a willful and wanton disregard for the safety of persons or property,” i.e., drove recklessly.  Defendant challenges the constitutionality of the ordinance.  Specifically, Defendant raises the issue of whether the ordinance violates his due process rights under the Tennessee Constitution, article 1, section 8, whether the Metropolitan Government of Nashville and Davidson County (“Metro”) has jurisdiction to administer a “criminal-type punishment” due to violation of its ordinance, and whether such punishment would violate Defendant’s rights under the Tennessee Constitution, article 1, section 16. Metro argues that Defendant waived the issues by failing to properly raise them during the trial proceedings.

The Appellant, Martin Hubert White, pled guilty in the Giles County Circuit Court to aggravated assault, a Class C felony, and burglary of an automobile, a Class E felony, and received an effective three-year sentence suspended to time served and supervised probation.  On appeal, the Appellant claims that the trial court erred by denying his request for judicial diversion.  Based upon our de novo review of the record and the parties’ briefs, we affirm the judgments of the trial court. 

The Petitioner, Christopher Demotto Linsey, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence obtained from his cell phone, failing to object to evidence presented at trial, and failing to file a timely motion for new trial.   Based on our review, we affirm the judgment of the post-conviction court denying relief.   

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the trial court found clear and convincing evidence in support of one statutory ground of termination, the persistence of conditions which led to removal. The court also found that termination was in the best interest of the children. We vacate the judgment of the trial court, holding that the record does not contain clear and convincing evidence to support the sole statutory ground of termination found by the trial court.

The defendant appeals the trial court’s judgment finding that he violated a reckless driving city ordinance, Metropolitan Code of Law § 12.68.180, when he drove 65 miles per hour in a 45-mile-per-hour zone.  During trial, Metropolitan Government of Nashville & Davidson County, Tennessee (“Metro”) presented evidence regarding the defendant’s speed to support its allegation that the defendant was driving recklessly.  Following proof of the defendant’s excessive speed, the trial court found that the defendant had failed to rebut the presumption created by ordinance that he was driving in such a way as to demonstrate “a wilful and wanton disregard for the safety of persons or property.”  The defendant challenges the constitutionality of such ordinance, which provides a rebuttable presumption that the defendant was driving recklessly when driving at least fifteen miles per hour over the speed limit.  However, the defendant’s issues concerning constitutionality of the ordinance were not properly raised or decided by the trial court, and upon our determination that the ordinance is not facially unconstitutional, we hold that the defendant has waived his issues regarding the constitutionality of the ordinance.  Upon our review of the record, we affirm the trial court’s judgment that the defendant violated Metropolitan Code of Law § 12.68.180.

The Defendant, Marcus Malone, appeals as of right from his convictions for second degree murder, attempted first degree murder, five counts of attempted second degree murder, twelve counts of aggravated assault, six counts of employing a firearm during the commission of a dangerous felony, and reckless endangerment with a deadly weapon, for which the trial court imposed an effective sentence of one hundred thirty-three years. The Defendant contends that (1) the trial court erred by denying the Defendant’s motion to suppress his police statement; (2) the trial court erred by failing to inquire into the Defendant’s request for substitute counsel; (3) the trial court erred by instructing the jury on criminal responsibility and by failing to instruct the jury on facilitation or self-defense; (4) the evidence was insufficient to establish his identity as the shooter; (5) his sentence is excessive; (6) the trial court erred by imposing partial consecutive service; and (7) his aggregate sentence is unconstitutional in light of his status as a juvenile at the time of the offenses. After a thorough review of the record and applicable law, we affirm.

A father appeals the termination of his parental rights to his child.  Because the trial court’s order lacks sufficient factual findings and legal conclusions, we vacate and remand.

The Appellant, Jeremiah McDaniel, was convicted in the Monroe County Criminal Court of solicitation of a minor to commit sexual battery, a Class A misdemeanor, and received a sentence of one hundred eighty days to be served in jail. On appeal, the Appellant contends that the trial court erred by constructively amending the indictment from solicitation of a minor to commit sexual battery by an authority figure to solicitation of a minor to commit sexual battery because sexual battery is not a lesser-included offense of sexual battery by an authority figure; that the evidence is insufficient to support the conviction because the evidence fails to show lack of consent; that the trial court should have dismissed the case or stricken the victim’s trial testimony because the State failed to produce the victim’s audio-recorded statement; that the trial court erred by admitting photographs of Facebook messages allegedly between the Appellant and the victim into evidence; that the trial court erred by limiting his cross-examination of the victim, by advising the victim of the victim’s Fifth Amendment rights, and by allowing the victim to invoke those rights; and that his six-month sentence in confinement is excessive. Based upon the record and the parties’ briefs, we conclude that sexual battery without consent is not a lesser-included offense of sexual battery by an authority figure but that sexual battery without consent is a lesser-included offense of solicitation of a minor to commit sexual battery by an authority figure. Therefore, the trial court properly instructed the jury on the lesser-included offense. However, we also conclude that the evidence is insufficient to support the Appellant’s conviction of solicitation of a minor to commit sexual battery. Therefore, the conviction is reversed and vacated, and the original charge is dismissed.

The Defendant, Kevvon Clark, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder; first degree felony murder; two counts of especially aggravated kidnapping, a Class A felony; aggravated rape, a Class A felony; and aggravated robbery, a Class B felony, for which he is serving an effective life sentence. See T.C.A. §§ 39-13-202 (2018) (subsequently amended) (first degree murder), 39-13-305 (2018) (especially aggravated kidnapping), 39-13-502 (2018) (subsequently amended) (aggravated rape), 39-13-402 (2018) (aggravated robbery). On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions for first degree murder, one count of especially aggravated kidnapping, and aggravated rape, and (2) this court should grant relief, as a matter of plain error, from the trial court’s failure to give a jury instruction in accord with State v. White, 362 S.W.3d 559 (Tenn. 2012). We affirm the judgments of the trial court.

This appeal concerns termination of parental rights. Paternal grandparents Russell B. (“Grandfather”) and Louella B. (“Grandmother”) (“Grandparents,” collectively) filed a petition in the Chancery Court for Washington County (“the Trial Court”) seeking to terminate the parental rights of Alexandria Y. (“Mother”) and Ricky B. (“Father”) to their minor child, Naomi B. (“the Child”). After a hearing, the Trial Court entered an order terminating Mother’s and Father’s parental rights to the Child. Mother and Father appeal. Grandparents raise additional issues as appellees. We find, inter alia, that in addition to the grounds found by the Trial Court, the proof is clear and convincing in support of the grounds alleged by Grandparents of abandonment by failure to visit against Mother and persistent conditions against both Mother and Father. We find further, as did the Trial Court, that termination of Mother’s and Father’s parental rights is in the Child’s best interest. We affirm the judgment of the Trial Court as modified, resulting in affirmance of the termination of Mother’s and Father’s parental rights to the Child.

Petitioner, Linda Anne Dunavant, appeals the denial of her post-conviction petition alleging that the post-conviction court erred in finding that she received the effective assistance of counsel at trial. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.